April 25, 2005

Cathy Young responds to Stephen Bainbridge on the question whether it is discrimination against religion to oppose a judicial nominee who has strong socially conservative beliefs that are founded on religion. She writes:

Take a hypothetical nominee for the federal bench who has publicly stated that male dominance is essential to a healthy social system. He is (a) an evangelical Christian whose beliefs are rooted in his understanding of biblical principles, or (b) an agnostic whose beliefs are rooted in his understanding of sociobiology. It seems that according to Prof. Bainbridge, the Senate would be allowed to hold the nominee's views against him in scenario (b), but not in scenario (a). Personally, I think that this particular belief ought to disqualify him whether it's based on the Bible, the Koran, Confucius, Darwin, Nietzsche, or the Gor novels.

I agree. The origin of a nominee's views -- in religion or outside of religion -- should not matter. Both Democrats and Republicans have exploited religion to manipulate people in the current squabbles over the judiciary. Some Democrats assert that nominees are religious zealots who will drag us into theocracy. And Republicans will try to immunize nominees because their unacceptable views have a religious source. Both parties need to avoid stirring antipathies about religion and irreligion for political gain.

I'd like to agree with you. My only reservation is that, in my experience, basing your beliefs on sociobiology is popularly seen as much more reliable than basing them on religion. So, it's not exactly a level playing field where we tell both sides to stop denigrating the source of the belief and just focus on the belief. One side needs to hear it more than the other.

I don't catch the televised news regularly, but this Monday night I did. The statistics were dragged out to illustrate how the two parties of the legislative branch have been just about equally critical of judicial nominees, the Democrats only differing in use of the filibuster versus the Republican's use of "God Knows What".

The main point of the news story was that all sense of compromise has been lost, seemingly driven out of the halls of Congress by partisan paranoia on both sides.

My concern goes with two questions: How did things ever get so bad that nothing is getting done on this matter? What will it take to get things going again?

Maybe this is not enough of my field. I recently took a day off to go to a public hearing on the issuance of a mining permit for a multi-national cement company. I just wanted to state my most basic opposition to it and leave, but the opposition was so fully overwhelming with experts and notables that even five hours of sitting did not let me get up to say anything. I get the impression this is happening too much in government, the idea that if you can't dazzle them with brilliance you can baffle them with bullshit.

Congress needs to listen to common sense more often, both parties. They need to be more accountable somehow.

Is it possible to link their pay to performance? You know, they accomplished nothing in this area so maybe they shouldn't get paid. Why does this not apply to them? It applies to me in the blue-collar field!

I find her strawman to be less than compelling. Although she did knock it down with a certain flair after a very solid set-up.

We don't need to take a hypothetical extreme strawman. We can use a very real example-- William Pryor. The primary concern over him is that he feels so strongly about his religious, pro-life views that his nomination should be scuttled. While there are clearly those who believe that being pro-life is comparable to believing in male societal dominance, the fact is that being pro-life is a mainstream view. It may or may not be the majority view, depending on the poll and the way the questions are phrased, but it is not 'out there'.

So we are not dealing with a particular belief that should disqualify the candidate regardless of what it is based upon. But that is exactly what is being done. The Democrats are trying to disqualify Pryor, and others, for this very view. And they are doing it by demonizing it as being out of the mainstream by playing upon people's fear of a 'theocracy'.

It is a double-whammy. It is discriminatory against devout Catholics, Christians, and even Muslims since they will believe that babies are babies before birth. And it is openly attempting to encourage and exploit fear of people like that.

Let me point to knemon's comment, which I think highlights the discrimination nicely:

"Pryor's voting record shows he can separate his conservative religious views from his wielding of the gavel - but they just don't trust him."

You wrote, "I'm thinking it's best to dish out the criticism equally. Otherwise, things will stay out of kilter forever."

But isn't criticism from outside sources one of the mechanisms for bringing things back into kilter?

I have two kids. One is easy going. The other is not. Both occasionally are disrespectful, but not nearly equally as often. I doubt it would be helpful if I dished out criticism over respecting their mother and father equally. It would make the easygoing one feel as if he gets nothing for his restraint, and make the volitile one feel as if she has nothing more to change than he does.

Oops, I gave away which is which... good thing they are too young to read Althouse. ;-)

Gerry: You raise an important point. People do have some reason to think that if you hold your views because of religion, you will have a harder time keeping them out of your judicial decisionmaking. I agree with you that a vote against a particular candidate, based on that ground, would be discrimination. All judges to some extent interweave their beliefs with their decisions and they have varying ideas about whether this is acceptable or not. The inquiry for a particular nominee should be individual, and those who support abortion rights ought to make a pointed inquiry into how well a person with pro-life beliefs will be able to separate that belief from decisionmaking. I wish both sides -- for and against such a nominee would avoid stoking religious antipathies.

That last comment of mine is to Gerry's post before that last one, which I'll respond to now. Actually, even in that kid setting, I don't know if I'd agree. The kid who gets criticized more is going to have his own perceptions of what's going on there and may well become more rebellious to authority, perceiving you as favoring the other. That you think it's fair, even if your right, does not control that child's perception.

"The kid who gets criticized more is going to have his own perceptions of what's going on there and may well become more rebellious to authority, perceiving you as favoring the other."

True, and that does match some of our experiences. On the flip side, when both are criticized equally for unequal behavior, the other child is going to question justice and have his motivation for being better behaved undercut.

Parenting, as I am sure you are more than aware, is tricky! Tradeoffs everywhere.

If a nominee's views track the teachings of his religion right down the line, I would suggest that that should increase our confidence in him rather than otherwise; it suggests (even if it doesn't quite prove) his willingness to subordinate his own preferences to a received body of rules, just as a judge should do.

I see your point, Paul. But if we could predetermine with "proper" appointments the outcome of judicial deliberation, why have a judiciary or at least why have hearings or trials? Wouldn't it save us taxpayers so much more money withotu them? oh, and then we could see we probably didn't need judges, either. We could just-- you know, to save the Constitutional framework-- start up something like a Politburo, maybe, and call it the Judiciary.

Because of course there'd never be a situation the Founders couldn't have predicted (oh, I dunno, IP in the digital age) or wrote one way but practiced another (like the franchise for all (Anglo, property-owning) men . . . (We'll leave women out of this, since the word "men" strictly speaking, meant that for women there needed to be an ammendment to extend the franchise.) And there might not need to be evidence presented when we knew someone was as guilty as Cain. (All murders get such a mark, after all.)

If you're making a point that following any rules would be better than flipping a coin, I still don't like the choices. Judges who ruled on the basis of the exact doctrines of their religions or denominations, first, would not necessarily agree with each other, unless appotnments were limited always to the same religious denomiantion. Second, such judges would be striking quite a bit of legislation as well as overturning many legal precedents. That's only better if one is an Orthodx member of the same religious denomination as this fictitious judge.

It's like a black hole, though. If a Republican properly complains about a Democrat's charges of theocracy, he'll sound like he is trying to "immunize nominees because their unacceptable views have a religious source". Conversely, if a Democrat properly complains about a judge imposing his religion from the bench, he'll sound like his is "assert(ing) that nominees are religious zealots who will drag us into theocracy". Both sides have valid points, in that we should neither impose a theocracy nor discriminate against people with strong religious views, but both sides will tend to paint with too broad a brush.

I think that the problem that Stephen Bainbridge has with Cathy Young's article is that he accepted the way in which she framed the debate; and then he was stuck in a virtually unwinnable position. He did, however, make a good run at it. Let's take another look at Cathy's argument.

The focus of her article is whether or not religious bigotry is involved in the selection of judicial nominees. She then centers her dismissal of such a claim by concentrating on the connection between being anti abortion and being religious.

"A pro-abortion-rights litmus test for federal judges may be wrong, but it's preposterous to claim, as some conservatives have, that it amounts to a religious test that disqualifies ''serious" Catholics and evangelical Protestants from public office."

She then assumes that if she can show that a pro-abortion-rights test is not in fact a religious test, she has then shown that there is no religious bigotry. Unfortunately, proving the one, has nothing to do with proving the other.

A pro-abortion-rights test, along with any other number of test, may or may not indicate religious bigotry, depending on how the opposition to the anti-abortion judical nominee is seen. In Chuck Shumer's, as well as other senators case, the bigotry is fairly clear. When they are refering to Pryor being influenced by his "very deeply held believes", what in the world are they talking about but his religion. The "very deeply held" portion tells you that they are talking about religion without wanting to mention the word religion. This is in effect code that all of the people over at Daily KOS, as well as many of the left's other supporters, will immediately understand. Deeply held believes equals religion and religion equals extreme and irrational ideas.

If I had a deeply held believe in saving the environment you would not hear the left using that terminology to describe me.

I think that Cathy fails to make the point that it isn't religion that is the problem, but rather the ideas that come from that religion. She points out that democrats are pro abortion and pro gay rights and that their objection is to the opposing views from people of religion, not to religion itself. If that is the case, then the democrats would make the logical argument for why those views associated with religion are wrong, or even out of the mainstream. But instead they take the shortcut by taring them as "deeply held believes". Having done that they need no further arguments of logic because they have already pressed the magic bigotry buttons among their followers. Their followers nod their heads together - sharing a common knowledge - that religion equals superstition and backwards thinking.

Let's consider, what is it that makes these judical nominees extremists if not their religion. Is being anti-abortion extremist? Certainly not in the minds of most Americans. Can the Democrats make the case that being anti-abortion is somehow irrational or superstitious. It seems to me that taking a position that some magic happens to a fetus such that 5 seconds before birth is is non human while 5 seconds after birth it has become imbued with some transcendent quality called humanity is much more of an irrational position.

While I can't personally buy into the father figure in the sky concept, I also cannot accept that everything else is false or backwards or foolish simply because it is religious. And I also cannot accept that all things secular are progressive and intellectual.

So the question remains, what about these judges is extreme if not their deeply held believes. Doesn't Chuck Shumer have deeply held believes about his own liberal principles. Of course he does, but he doesn't refer to them that way because such references are clearly meant of be a shorthand dismissal of people of religion.

Chuck Schumer was referring to Pryor's "deeply held" belief that abortion is murder. I'm not sure where you get the notion that a "deeply held belief" necessarily refers to a religious belief. What Schumer was saying was that those beliefs, in Pryor's case, were so "deeply held" that they would almost inevitably influence his practice as a judge.

And I have to say I'm baffled by the assertion that supporters of legal abortion and gay rights have never tried to make a case for their views but have merely argued that opposition to abortion and gay rights is wrong because it's rooted in religion. That's simply not true.